Court Blocks Bio-Terror Research Center

October 20th, 2006 - by admin

San Francisco Chronicle & Contra Costa Times & Associated Press – 2006-10-20 22:54:40

Court Blocks Bio-Terror Research Center
Bob Egelko / San Francisco Chronicle

LIVERMORE (October 17, 2006) — A federal appeals court on Monday blocked Lawrence Livermore National Laboratory from opening a research center for detecting biological weapons until the government studies the possible environmental consequences of a terrorist attack.

The Ninth US Circuit Court of Appeals in San Francisco said the federal Department of Energy must consider whether terrorists could attack the center, and then decide whether the possible consequences warrant a full environmental review. Such a review could take a year.

Two anti-nuclear organizations and several local residents sued the government to keep the lab from opening next month. Research performed at the lab is intended to help the government detect terrorist weapons that might take the form of biological pathogens such as anthrax, plague, brucellosis and Q fever.

According to the plaintiffs, the research would include putting lethal substances into aerosol form and testing them on mice, rats and guinea pigs.

The Energy Department had previously concluded that the possibility of deadly substances being released into the general population was too remote to require a full environmental review. Such a review would require the government to solicit public comment and consider possible protective measures, such as moving the research lab elsewhere.

The appeals court did not go that far in its ruling Monday, but it did tell the Energy Department to look into the environmental consequences of a terrorist attack and document its conclusions.

Lab spokesman Steve Wampler said the government was reviewing the ruling and hadn’t determined what actions to take or when the research lab might open.

The appeals court based its 3-0 ruling on a Ninth Circuit decision in June requiring the government to consider the possibility of a terrorist attack before allowing construction of a nuclear waste storage site at the Diablo Canyon power plant near San Luis Obispo. The plant’s operator, Pacific Gas and Electric Co., has appealed that ruling to the US Supreme Court. Opponents of the Livermore testing lab described Monday’s ruling as a major victory.

“This decision marks a turning point for Department of Energy decision-making,” said Loulena Miles, a lawyer with the anti-nuclear group Tri-Valley CARES, which is a plaintiff in the suit.

“I feel safer today because of the court’s decision,” said the group’s executive director, Marylia Kelley, who lives a quarter-mile from the Livermore lab. “In the event of a terrorist attack on this laboratory where bio-agents become airborne, hundreds or thousands of people could have been exposed to deadly pathogens.”

The court sided with the government, however, on other issues in the case, including opponents’ claims that the possible release of hazardous substances in an earthquake required full environmental review. The suit, filed in 2003, contended that the Las Positas fault zone near the lab is capable of generating a quake of greater magnitude than the prefabricated building housing the research lab is designed to withstand.

The appeals court said the government had made a “minimal assessment of earthquake risks despite the presence of known, active faults that run directly under nearby Berkeley.” But despite “some substantial questions about the validity of (the department’s) substantive conclusions,” the court said it was legally required to accept those conclusions, because the department had examined the environmental concerns and made a “fully informed” decision.

Despite that setback, plaintiffs’ lawyer Stephan Volker said the court’s order of reconsideration would allow opponents to reopen a variety of safety issues by presenting information about earthquake hazards and security risks that wasn’t available when the department approved the lab in December 2002.

Court: More Study of Terrorist Attacks on ‘Hot Lab’ Needed
Eric Kurhi / Contra Costa Times

A federal appeals court ruled today that the Department of Energy must take the possibility of terrorist actions into account before opening a biodefense facility at the Lawrence Livermore National Laboratory.

The decision affirms a lawsuit filed by Livermore-based Tri-Valley Communities Against a Radioactive Environment, which alleged such an attack on a Livermore biowarfare research lab could have a disastrous effect on the surrounding community.

“I can tell you honestly I feel safer today because of the ruling,” said Marylia Kelley of Tri-Valley CARES. “Operating an advanced biowarfare research facility without review is an extremely dangerous undertaking.”

The new 1,600-square-foot “hot lab” would allow scientists to deal with deadly pathogens, including anthrax and plague, in an effort to prepare antidotes to counter such a biological attack.

It had been scheduled to open in mid-November, but cannot begin operations until the agency “considers whether the threat of terrorist activity necessitates the preparation of an Environmental Impact Statement,” according to the court’s decision.

A spokesman for the lab said the Energy Department is reviewing its options. Those could involve doing a full environmental report, or expanding the existing study. What actions are taken will ultimately up to the Energy Department.

According to Monday’s memorandum, “We caution that there ‘remain open to the agency a wide variety of actions it may take on remand, and we do not prejudge those alternatives.’ ”

Kelley said she hopes the decision will result in more public input. “We want the department to come to the conclusion that it needs to do an environmental impact statement before opening the lab,” she said. “At that point a public hearing would be mandatory.”

Attorney for Tri-Valley CARES Stephen Volker said they are also concerned there was not enough attention paid to the possible effects of an earthquake on the hot lab. Livermore lab sits within two miles of two faults. “Significant new information regarding faults and earthquake behavior has been done since then that will affect the impact of the lab,” he said.

Volker said he hopes that, ultimately, the location of the lab will be moved to somewhere less populated. “This gives the government a chance to do it right … this is the worst possible location for such a lab,” he said.

Monday’s ruling notes that the assessment of earthquake risks was “minimal,” but the court cannot override the Energy Department’s findings. The court based its ruling on a decision in a suit against Diablo Canyon Nuclear Power Plant in San Luis Obispo County. The Nuclear Regulatory Commission was ordered to reconsider whether a study is needed of the impact of a possible terrorist attack on a planned spent fuel facility at the Diablo Canyon plant.

In September, Pacific Gas and Electric Co. asked the US Supreme Court to review that case. Tri-Valley CAREs originally sued the Energy Department over proposed hot labs at Livermore and Los Alamos national laboratories in August 2003. Shipments of biological agents — including botulism, anthrax, plague, valley fever and Query fever — were stopped pending the decision.

Last November, the DOE announced it would do a full environmental report for the lab at Los Alamos.

Appeals Court Questions Livermore Biodefense Lab
David Kravets / Associated Press

SAN FRANCISCO (October 17, 2006) — The federal government’s plan to research lethal agents such as HIV and anthrax in a San Francisco Bay area suburb hit a legal snag Monday when an appeals court ruled the Energy Department must consider what would happen if the lab were attacked by terrorists.

Acting in a case brought by neighbors of the Livermore facility, the 9th US Circuit Court of Appeals said the Energy Department conducted an inadequate assessment of the lab’s environmental impact because the agency did not adequately examine the repercussions of a terrorist attack.

The new biodefense lab was initially set to open in August at Lawrence Livermore National Laboratory, but lawsuits have so far held up the project. The facility would test airborne agents, including hantavirus, influenza, hepatitis, Q fever, brucellis, herpes and salmonella, on live animals.

Steve Wampler, a spokesman for the lab, said the Energy Department was studying the decision and weighing its options, which include an appeal to the US Supreme Court. The government told the appeals court during oral arguments this summer that the administration concluded there was little risk of disaster striking the lab.

The case was brought by Tri-Valley Cares, which claimed the government did not adequately prepare or analyze what might happen if the proposed biodefense lab were attacked.

Executive Director Marylia Kelley, who lives across the street from the lab about 50 miles east of San Francisco, said she was concerned the facility might still open without sufficient consideration of its risks.

“The planned 60 shipments of pathogens in and out of Livermore each month have been halted for now, but we must stay vigilant because the Energy Department may still try to approve this plan without serious consideration to terrorist risks and other security concerns,” Kelley said.

It’s not the first time the court has ordered terror studies on government property.

In June, the San Francisco-based appeals court also blocked approval of an Energy Department proposal to store additional radioactive waste at a nuclear energy installation in Central California. The court said federal regulators had to first consider the likelihood of a terrorist attack on the facility.

The case decided Monday is Tri-Valley Cares v. Energy Department, 04-17232.

David Kravets has been covering state and federal courts for more than a decade. Copyright 2006 AP


Ninth Circuit Court Issues Final Decision in Landmark National Lawsuit

SAN FRANCISCO (October 16, 2006) — The Ninth Circuit Court of Appeals issued a ruling today holding an Energy Department environmental study inadequate and thereby halting Energy’s impending plans to operate the first advanced biowarfare agent research facility inside a US nuclear weapons lab.

This decision follows three years of litigation and public outcry against the planned operation of the dangerous facility.

The Biosafety Level-3 facility was designed to conduct aerosol experiments and genetic modifications using lethal pathogens such as live anthrax, plague, botulism and Q fever. The Energy Department had omitted any study of security risks and terrorist threats to the facility on the basis that such an analysis was not required under the National Environmental Policy Act.

The Ninth Circuit Court upheld plaintiffs’ contention that the Energy Dept. acted illegally in omitting that analysis.

Two plaintiff organizations, the Livermore Lab watchdog group, Tri-Valley CAREs, and the Los Alamos Lab watchdog group, Nuclear Watch of New Mexico, along with individually-named community members, demanded that the Energy Dept. conduct a thorough study of the project’s potential environmental impacts — including potential terrorist threats.

In today’s decision, the Ninth Circuit remanded the environmental review back to the Department of Energy for further analysis on terrorist risks, and possibly a full environmental impact statement, before the facility can operate.

“We are thrilled that the Court sent the Department of Energy back to the drawing board on this ill-conceived plan,” said Marylia Kelley, the Executive Director of Tri-Valley CAREs, who lives down the street from Livermore Lab. “I feel safer today because of the court’s decision. This is a huge victory for the residents of the Bay Area.”

Kelley continued, “In the event of a terrorist attack on this laboratory where bioagents become airborne, hundreds or thousands of people could have been exposed to deadly pathogens.”

“This decision marks a turning point for Department of Energy decision-making and sets a precedent for Energy Department facilities across the nation, ensuring that they cannot open without a stringent environmental review,” said Tri-Valley CAREs’ Staff Attorney Loulena Miles. “Now the agency cannot merely cry National Security and avoid hard questions concerning environmental impacts and terrorist risks.”

The original lawsuit challenged both the Livermore Lab’s plans to operate the BSL-3 facility without proper environmental study as well as a sister proposal for Los Alamos Laboratory in New Mexico to open a similar biolab, also without thorough environmental review.

Jay Coghlan, Executive Director of Nuclear Watch New Mexico, believes this decision is likely to have wide-ranging impacts as well. “This decision in California is excellent. The question is how it might apply to Energy Department activities across the country. For instance, the Department is expanding the Los Alamos nuclear weapons programs, but failed to consider potential terrorism. New environmental review of the Los Alamos biolab is expected soon.

DOE is about to begin review of the nation-wide nu-clear weapons complex. Because the post-9/11 consequences to the public can be so very serious, potential terrorism effects should be considered in each case. We are very pleased that our litigation is leading in that direction,” said Coghlan.

After plaintiffs filed suit in 2003, the Energy Dept. withdrew its approval for the Los Alamos biolab and, therefore, litigation went forward only on the Livermore proposal. Neither of the advanced biowarfare agent research facilities that were the subject of the original litigation have opened. The Dept. of Energy is presently conducting further analysis of the environmental risks of the Los Alamos bio-lab proposal.

If either of these advanced biowarfare agent research facilities would have been allowed to open, it would be the first time an advanced biowarfare agent research lab would have operated inside a US nuclear weapons lab.

“Opening this lab would have sent a signal to the world that it is acceptable to study advanced biowarfare agent research inside classified nuclear weapons labs,” argued Loulena Miles. “A handful of committed individuals have kept advanced biowarfare agent research out of the hands of US nuclear weapons labs so far, but we still have a lot of work to do.”

Contact: Marylia Kelley, Executive Director, Tri-Valley CAREs (Communities Against a Radioactive Environment), 2582 Old First Street Livermore, CA USA 94551. (925) 443-7148; fax: (925) 443-0177.